Monday, July 13, 2015


One problem with judicial law making is the difficulty of fixing mistakes. If a legislature passes a law, and it turns out that, in its operation, many unforeseen things result, it is easy enough for the legislature to amend or repeal the law at its next session.

Not so with the courts. When a court decides a case, the case is over. There is no process whereby the court can call the matter back and rewrite its opinion.

One obvious problem with the Obergefell case is the oft repeated phrase “the right to marry.” It appears 29 times in the Kennedy opinion. The point is belabored. In the opinion of the majority of the Court every person has a constitutional right to marry whomever they choose to marry.

The language of the opinion does not limit the right to marry to homosexuals. Clearly the majority intend that the right to marry is embedded in the Fourteenth Amendment guarantee of equal protection of the law.

Obviously, prior to Obergefell, homosexuals had the same right as everyone else to marry a person of the opposite sex. In expanding that right to marry the Court did not say that their opinion applies only to homosexuals. Heterosexuals are, in the opinion of the majority, equally entitled to marry someone of the same sex.

The Court was not declaring a limited, orientation specific, right to marry a person of one’s same sex. It is hardly to be supposed that the state legislatures could enact a requirement that an applicant for a same sex marriage prove his or her orientation in order to qualify for a same sex marriage license.

No, I believe the Court intended to make the right to marry a person of one’s own sex universal. That said, same sex marriage may well be an economic strategy for heterosexuals. Two male or two female college freshmen bent on qualifying for married student housing; young men seeking to be deferred from military service, friends bent on maximizing income tax benefits or social security benefits; the list of strategic marriages goes on and on.

Moreover the universal ‘right to marry’ will call into question the logic of statutes prohibiting marriage between persons within a designated degree of kinship. Those laws prohibit incestuous marriages because human experience tells us that the progeny of such unions are at risk of deformity or other birth defects.

Obviously, that rationale does not apply to same sex unions, so it can be expected that legal challenges to those rules will be mounted, citing the Obergefell “right to marry.”

Once the Court has opened that gate, the number of tax incentive unions will burgeon. The inherent fairness of allowing heterosexuals to qualify for the same economic benefits as homosexuals will undoubtedly mute any resistance from the major media.

There are other evil spirits jumping out of Pandora’s box as well. Even the best intentioned same sex partners cannot procreate naturally. Commercial traffic in male sperm is already a fact of American life, and the science of 'rent a womb' is accepted. If there is not yet an 'egg bank' to complement the sperm banks, there soon will be. As same sex marriages proliferate, our culture will more and more tolerate what can only be called the manufacturing of babies.

There are already a number of advocates for multiple marriage unions. If the ‘right to marry’ infers the right to marry anyone of a person’s choosing, what logic will keep the Court from approving bigamy and polygamy?

Combined with the mandate of Roe v Wade, we are embarking on a dangerously inhuman cultural drift. The science of eugenics, which gained a great deal of attention in the early years of the last century still has many devotees.

Animal breeding is an accepted and respected science. Dogs and horses have their ‘papers’ evidencing their genetic background. Champion racehorses are put out to stud because breeders know that running ability is at least partly hereditary. Humans have hereditary traits as well. As ‘having children’ becomes more and more an exercise of shopping and choosing, the science of eugenics will be more and more a topic of interest.

Hard times are coming. 


  1. Well said your Honor
    Can you explain how the judicial branch can define marriage

  2. I can't, Brian, and neither can anyone else!